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Jerry Kopel

KOPEL: LEGISLATURE WILL DECIDE…

Can unlicensed psychotherapists claim they’re registered by the state?

2/4/2011

First the good news: Based on a recommendation from the Dept. of Regulatory Agencies research staff, the Legislature will set up a Type 1 independent board to oversee and regulate more than 3,000 licensed and certified addiction counselors presently governed only by the director of the Division’s Medical Health Section.

And the bad news: There could be a heavy fight between unlicensed psychotherapists (called ULPs in this column) and licensed psychotherapists.

Each group has its own Type 1 autonomous board composed of four members from the general public and three practitioners having rule-making and policy-making authority and ability to discipline persons they regulate.

The fight will be over what the ULPs can call themselves. The Grievance Board regulates ULPs, who cannot practice unless listed in the board’s database.

According to DORA, “ULPs represent the most diverse group within the mental health professions, including the education level attained as well as the methods of the therapy utilized. Since there is no minimum education requirement to be listed in the database, the amount of education of ULPs varies from a high school education to a Ph.D.”

Out of 17,744 regulated mental health professionals, as of the fiscal year ending June 30, 2009 there were 2,462 licensed by the Psychology Board and 2,706 ULPs on the Grievance Board database. There were 136 more licensed in fiscal 08-09 (2,462) then in fiscal 07-08 (2,326). In the same period ULPs went up to 2,706 in 08-09 from 2,059 in 07-08. There was no discussion in the DORA report on how and why this happened.

Each group practices psychology but only the licensed group can use that term under CRS 12-43-201. And CRS 12-43-702.5 (3) denies ULPs the right to use “regulated” or “registered” or “certified” or “clinical” or “state-registered” or “state approved” or any other service term such as “recommended by the state solely on inclusion in the database.”

DORA wants to let the ULPs use “registered” to assure patients that the state is regulating them. But the report offered no research to show the database information was not known to ULPs patients. Under CRS 12-43-214 mandatory information in the database plus information on how to contact regulators regarding violations shall be provided to the patient. Failure to do so is the basis for discipline action.

CRS 12-43-201 (10) defines ULPs as “any person whose primary practice is psychotherapy or who holds himself or herself out to the public as being able to practice psychotherapy for compensation and who is not licensed under this title to practice psychotherapy.”

Did disciplinary action differ when licensed person and ULPs were regulated by the same grievance board?

Difference in number of disciplinary actions by the two boards for 7/1/04-6/30/09: Licensed 31 and ULPs 89. That included ZERO actions for licensed persons in fiscal 2008-09. The report did not detail why zero actions on complaints that were accepted.

There is a jurisprudence test required to be passed by all regulated candidates including ULPs as to knowledge of the statute as well as applicable rules.

This DORA mental health review also includes social workers, marriage and family therapists, professional counselors and the following suggestions generally apply to all the reviewed mental health professions:

Answering a complaint: The statute is silent on whether the board and the director of the division have authority to formally discipline mental health professionals for failure to respond to complaints. DORA recommends the boards or the division director notify the professional by letter about the complaint and require a response within 30 days. Failure to respond should itself be a violation of prohibited activities.

Consideration of a felon: If the professional is convicted of a felony or pleads nolo contendere, the board or the director should be able to consider whether it violates prohibited acts regardless of “whether the felony or plea is related to the ability to practice.”

Fine the violator: Presently the boards and the director lack the ability to fine the professional for violation of the statutes. The fines collected would go directly to the General Fund rather than kept for use by the board or director.

Keep the boards 4 to 3: Some professionals question why the majority of the boards are not members of the particular profession. DORA recommended the 4 to 3 boards in ending the original grievance board, which oversaw all mental health violations. DORA believes the majority public member boards are working and urges no change.

One disciplinary requirement prohibits a “willful” violation, CRS 12-43-222 (1) (t) (1). The word implies intentional acts. But the reason for the statute is to prevent harm to consumers, not whether the violation was intentional. DORA recommends striking the word “willful.”

DORA would be doing a great favor to legislators by providing a one or two-page list of the statistics provided in this column for the fiscal year 2009-10 so legislators could ask questions about any large changes in stats already available and if provided to me I would write about it.

Jerry Kopel served 22 years in the Colorado House. Before then, as assistant attorney general he drafted the bill establishing in 1961 the State Board of Psychology.